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Tuesday, July 12, 2005

Sensenbrenner and Congressional "Oversight" of Judges

Rep. James Sensenbrenner (R-WI) is in the news again for a criminal sentencing matter:

Rep. James Sensenbrenner, R-Wis., in a five-page letter dated June 23 to Chief Judge Joel Flaum, asserted that a June 16 decision by a three-judge appeals court panel was wrong. He demanded "a prompt response" as to what steps Flaum would take "to rectify the panel's actions" in a case where a drug courier in a Chicago police corruption case received a 97-month prison sentence instead of the at least 120 months required by a drug-conspiracy statute. Jay Apperson, the congressional counsel who brought the ruling to Sensenbrenner's attention, added: "We can't have judges violating the law."

Flaum declined comment on the situation, saying he doesn't publicly discuss matters pending before the court. He sent a letter back to Sensenbrenner saying it was inappropriate to comment on a pending case. But the panel amended its ruling to cite a Supreme Court case that showed Sensenbrenner was wrong.

Apperson, who is chief counsel of a House Judiciary subcommittee, argues that Sensenbrenner is simply exercising his judicial oversight responsibilities. But some legal experts believe the action by the Judiciary Committee chairman, who is an attorney, is a violation of House ethics rules, which prohibit communicating privately with judges on legal matters, as well as court rules that bar such contact with judges without contacting all parties.

The article first appeared Sunday in the Chicago Tribune (hat tip to Doug Berman) and is now being reprinted in places like Mississippi. The incident is prompting editorials and follow-up stories here and there

I have a question and a comment. The question: Can any readers give me some guidance on the suggestion in the article that Sensenbrenner's letter might violate legal ethics rules against ex parte communications? I'm especially curious about this now, because I'll be teaching Professional Responsibility for the first time this coming academic year, and I'm collecting news stories and other relevant tidbits. Does Sensenbrenner, an attorney acting in his role as a member of Congress, really have a legal ethics problem here?

The comment: the reaction to Sensenbrenner's defense is revealing, I think. We wouldn't bat an eye if a Representative sent a letter to an administrative agency urging the agency to reconsider some matter it had decided. Truth be told, there might be a basis under traditional administrative law doctrines for invalidating an agency adjudication if it were based entirely on pressure from Congress. But as a matter of public opinion, I don't think that sort of congressional "oversight" creates any worries. On the other hand, we get quite worried about members of Congress telling judges how to interpret the Constitution, or (to a lesser extent) how to interpret some statute passed by some previous Congress. 

When Sensenbrenner says that he's only performing "oversight" here, he is likening the judges to the executive branch officials who are primarily agents of Congress when they carry out policy. He believes that judges, when sentencing, are meant to carry out the views of Congress, and any value they might add as independent actors (rather than dutiful agents trying to read the mind of their principals in Congress) is not especially weighty.

Sensenbrenner's critics, on the other hand, assume that judges at sentencing must (as a matter of constitutional law? tradition?) add their own value to sentences as independent actors. Obedience to statute is only a part of their task, and Sensenbrenner mistakenly assumed that agency role to be the entire task of judges. 

This conflict of views about judges-as-agents versus judges-as-value-adders at sentencing will play out pretty often in the coming months (years?) as Congress decides whether to rework federal sentencing law. 

Posted by Ron Wright on July 12, 2005 at 05:31 PM in Criminal Law | Permalink


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I am going to pose a some what radical idea that I understand many
scholars have to their satisfaction answered but I feel could be
argued differently. Being that the definition of "oversight" elevates
Congress to a position above either the Executive or Judicial branch
I believe the constitution would have to be amended to enumerate this power. I have heard the arguments that to effeciantly make lawes and execute their taskes they must perform oversight wich is "bull" Information they need can be found in many printed areas. By pulling in department heads and other employees it is implied that they are reporting to the congress not the Executive. Is not that influencing execution of the laws which are the enumerated executives power. I find it interesting that things such as prohibition took a amendment but it has been presented that something that fundamentally affects the balance of powers is enacted by simple law by the branch that gains power.

Posted by: Bart | Sep 11, 2006 8:01:22 PM

Brad Wendel's comment "DeLay/Cornyn fulminations about judges deserving violence" is libelous. Cite one instance where either DeLay or Cornyn said that any judge deserved violence.

Posted by: Mark | Jul 19, 2005 11:13:05 AM

In response to MJ's question, I think Paul's distinction answers it. It's the role of the judiciary to engage in case-by-case adjudication; that's why we have the prohibition on bills of attainder, the case-or-controversy requirement, non-retroactivity doctrines, and so on. To the extent the legislative branch has an oversight role, it's exercised at a higher level of generality. Congress can expand or contract the jurisdiction of federal courts (within constitutional limits, of course), but its role is not to micromanage individual decisions. I like the way Ron puts it, in terms of the role of judges vs. the role of legislatures, or the function (or competence, to give the argument a legal-process flavor) of different government institutions.

Here's another way to look at it: The standard conservative complaint about "activist" judging is that judges act like legislators when they make broad policy judgments that are, for good political reasons, the province of the legislature. That is to say, judge are stepping out of their role. The flip side of this is one could criticize legislators for being activists if they make case-by-case decisions applying the law to the facts of a situation. For good political reasons, these decisions are the province of the judiciary. And when judges make decisions, they do owe an explanation -- that's why we have the tradition of issuing written opinions. But no member of Congress is entitled to a personal explanation, in addition to the written opinion. Again, I'm not saying that judges should not be criticized, and I actually don't mind a bit of grandstanding by politicians -- it's a healthy part of the process (even if the politicians occasionally look like jerks, as in the DeLay/Cornyn fulminations about judges deserving violence). However, the process does not permit legislators to go beyond criticism to attempt to exercise their power to influence or reverse particular judicial decisions.

Posted by: Brad Wendel | Jul 13, 2005 4:47:41 PM

From Ron:
On the ethics questions, I'm grateful for your take on both the litte-e ethics issues and the Big-E political ethics of the situation. Both lenses are very helpful in the classroom, where I intend to pursue this question. It's much trickier, of course, to assume that you can keep these two levels untangled in sound-bite media arguments.

As for the merits, I think Paul makes a promising distinction between separation of powers more generally, and an Article III argument about the nature of judging. I would go a step further: we're talking about a specific TYPE of judging (the selection of a sentence) where we have traditionally thought that judges can add real wisdom because they see particular human beings in particular cases. It is this specialized sentencing context that produces the jarring reaction most of us have to Rep. Sensenbrenner's "oversight" because it casts judges as mere agents of Congress in a setting where they usually are far more.

MJ asks a fair question: what's wrong with a congressional committee asking for an explanation of a sentence it believes was imposed contrary to law? I think Congress has responsibilities for prospective lawmaking only (think of ex post facto principles here). So even if a court were quite clearly applying the law wrongly to impose a particular sentence, I would hope that Congress would leave other institutions free to do their jobs, even if they make mistakes when doing their jobs. Congress can clean up the mess later, but only prospectively.

Posted by: Ron Wright | Jul 13, 2005 4:04:49 PM

The other consideration is that Sensenbrenner didn't hesitate to do research (or, realistically, hire someone who knows how to do research) before foaming at the mouth. There's a controlling Supreme Court precedent that it probably took the 7th Circuit about 7 seconds to find and cite. If Sensenbrenner were bothered by the "legal inaccuracy" of the ruling, he would've looked into the relevant law first. No, he was grandstanding about a sentence that, to his ill-informed mind, didn't seem harsh enough.

In short, the utter lack of legal knowledge underlying Sensenbrenner's complaint shows it to be a fit of know-nothing pique rather than a genuine legal question (setting aside the other improprieties).

Posted by: Scott Moss | Jul 13, 2005 3:38:50 PM

Fair and reasoned comments and questions all the way around. My question is this: Assuming the congressman and committee are acting in good faith, that is they truly have grounds to believe that a court failed to impose a sentence that is required by law, doesn't it make sense to assert oversight before the sentence is final rather than wait until sentence has already been imposed?

What is wrong with a congressional committee asking for a court to explain why they deviated from a sentence that is required by statute? And if the way that the congressman and committee went about it was wrong, what would be the right way?

Posted by: MJ | Jul 13, 2005 11:23:29 AM

I've always thought about these cases in terms of separation of powers, but I like Paul's connection with the case or controversy requirement. That makes a lot of sense, and would be a reason to suspect Sensenbrenner's attempt to interfere with the sentencing in this case. My only point about ethics vs. Ethics is that it's distracting to talk in terms of specific rule violations when we're actually talking about broader political issues. For example (and this is probably off-topic, but what the hell), does anyone REALLY care whether it was a crime for Karl Rove to expose Valerie Plame? The real issue in this controversy is whether the Bush administration had a pattern of fiddling the intelligence on Iraq's WMD program during the run-up to the war. If Rove retaliated against Joseph Wilson for debunking the Niger uranium claim by outing Wilson's wife, that's extremely serious political misconduct. I'm not saying it's irrelevant whether Rove broke the law -- presumably the special prosecutor and Rove care a great deal about that issue. But the careful parsing of the statute on disclosure of the identity of covert agents seems like a bizarre preoccupation when the legal issue matters (in public debate) only relative to a context in which it doesn't matter whether Rove broke the law or not. This isn't an attempt to hijack this thread for a rant about the Iraq war -- my point is just that, while as someone who knows something about legal ethics I'm happy to talk in terms of specific rule violations, I also think it's important to figure out whether we're really concerned with the rule violations, or whether discussion of the rule is just a proxy for something else.

Posted by: Brad Wendel | Jul 13, 2005 11:21:12 AM

Brad: I agree with you, but it's important to have some conception of the rules that we're operating with before we step out to big-E ethics (I want my facticity BEFORE my validity! :-) ). Little-e ethics suggest that at the very least we consider it abnormal under the rules for a judge in an individual case to receive advice from even a third party absent various procedures to protect the sanctity of our adversary system.

In terms of the broader question, what are the reasons we're concerned about just that? It seems intuitively to me that there's an entire stream of constraint running through the legal system rooted in the cases and controversies clause that commands the judiciary to be concerned with adjudicating what the parties bring before the court, as the parties bring it before the court. The illegitimacy of interference from Congress might not be rooted in any idea of separation of powers, but in the idea that the perogatives of the parties (here, the executive and the defendant) to battle it out on their own terms are infringed. And fundamentally, that's an idea of judicial restraint, not Congressional restraint. If courts are free to adjudicate beyond the bounds of what the parties bring to them, as would be the case if they have third parties running around making extra-institutional demands on them, the scope for seemingly illegitimate judicial legislation expands, rather than contracts.

Just an off-the-cuff thought and an attempt to connect the Big-E ethics questions to the little-e ethics rules. Please don't hold the fact that it's totally not thought through against me!

Posted by: Paul Gowder | Jul 13, 2005 10:32:33 AM

Re Paul Gowder's comment: It's true that the text of Rule 3.5(a) (attorney may not seek to influence judge by improper means) and (b) (no ex parte communications with judges) is seemingly not limited to lawyers representing clients during a particular proceeding, but the overall structure and aim of the rule is clearly directed toward that case. The Rotunda & Dzienkowski treatise says the whole rule is simply designed to incorporate generally applicable law by reference into the disciplinary rules, and thus make a lawyer subject to professional discipline for doing something that is already prohibited by law. The Code of Judicial Conduct, and applicable rules of procedure, set out procedures for dealing with ex parte contacts -- notice to other parties, an opportunity to respond, etc. The "ethical" problem here is not with a technical violation of the rules governing lawyers or judges. Rather, it's a problem of political ethics, which is much more difficult. As MJ frames the issue, the question is whether the interest in securing accountability of the judiciary permits legislators to flyspeck individual decisions and demand an explanation for them, beyond that which was given in the judge's opinion. I don't think the judiciary is immune from criticism -- far from it -- but at the same time, as Doug B. points out, congressional oversight can't possibly mean that representatives should be permitted to review individual decisions and insist upon explanations in the form of a supplemental opinion. As someone who cares about both little-e ethics (in the sense of the law governing lawyers and judges) and big-E Ethics (in the sense of broader political and moral questions raised by lawyering and judging), I would prefer to see this issue discussed in terms of political and jurisprudential values, not ticky-tacky violations of the ex parte contact rules.

Posted by: Brad Wendel | Jul 13, 2005 9:39:04 AM


Isn't the difference between the congressman's response to the court vs. the court's response to the congressman the fact that congress, in particular the judiciary committee, has legal oversight authority over the judiciary, while the inverse is not true?

It seems to me that too many people take the view that the judiciary is somehow immune from either criticism or oversight; that this branch is somehow above reproach and that the other two branches must simply accept whatever the judiciary decrees, lest the "independence of the judiciary" sky come falling down.

The judiciary is nothing more and nothing less thatn a co-equal branch of government. If they deviate from enforcing laws enacted by congress (and I'm not saying they did in the above case - I just don't know the facts), why the hell shouldn't the chair of the committee with congressional oversight authority over the judiciary ask for an explaination?

Posted by: MJ | Jul 13, 2005 7:44:06 AM

Within the last year there was a case out of Texas involving a lawyer-legislator whose political conduct violated the ethics rules -- but the court held that the legislative function essentially trumped the lawyer role and no discipline was applied. Unfortunately, I can't find the name of the case offhand but I think it deals with an issue pretty close to the one you raise.

Posted by: John Steele | Jul 13, 2005 1:02:23 AM

I think this is just a interbranch squabble in which neither side is really playing by the rules. If I recall correctly, several judges struck down the guidelines pre-Booker because it "interfered with the judicial power," code for "we want this power and won't let anyone else have it." Sensenbrenner is playing a similar game, trying to take the power back post-Booker even if he has to take a very unorthodox (and even just weird) route.

Posted by: lawguy | Jul 12, 2005 10:09:47 PM

Hypocrisy, anyone? Not too long ago, post-Booker, a few federal judges (all or most democrat-appointed) wrote a letter to Sensenbrenner saying they'd like to meet to discuss any possible Congressional efforts to draft new guidelines. No response from Sensenbrenner. One of the judges calls Sensenbrenner's office and is told that the letter must've goten lost, so please re-send it. The letter is re-sent; still no response. True story.

So Sensenbrenner gets to demand, quite officiously, a response on an actual pending case from federal judges. But he doesn't have to respond to polite inquiries from federal judges.

Sensenbrenner, remember, is the committee chairman who shut down a hearing (without a vote) because he didn't like the testimony. (I saw it on C-Span -- very entertaining.)

Basically, Sensenbrenner is a dim thug whose sole qualification for public office is his one intelligent decision in life: to be born into a wealthy family.

(If you're batching me taking this personally, it's because he's "my" congressman.....)

Posted by: Scott Moss | Jul 12, 2005 7:57:52 PM

Great points, Ron, and I hope some experts chime in on the interesting ethical question. I'd like to add that my concern about Sensenbrenner's letter is related not only to who is being overseen, but also how. There are over 65,000 federal sentences handed down every year, and Sensenbrenner decides to exercise his "oversight" in a case involving a low-level drug dealer getting a sentence of 8+ years instead of 10 years. Is this single sentence a matter of such dire consequence that it requires the sustained attention of the Chair of the House Judiciary Committee?

If Congress really wants to micro-manage --- uh, I mean oversee --- federal sentencing outcomes, I hope it might start asking questions about sentences that seem much too harsh (like Jamie Olis' 24 years for his apparently minor involvement in a corporate fraud or Weldon Angelos' 55 years for a relatively minor marijuana offense).

In short, the problem is not just who, but also how.

Posted by: Doug B. | Jul 12, 2005 6:17:08 PM

I was expecting to say "no, he's not a party, there's no reason why he can't communicate with the judge." But a quick look at a couple of the model ABA publications convinced me that I was wrong. ABA model rule 3.5 contains no restriction as to lawyers involved in the proceeding (too busy to look up adjudications), but, more significantly, the model code of judicial conduct forbids judges from such consultation:

(7) A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law*. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that:

* * *
(i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and

(ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.

(b) A judge may obtain the advice of a disinterested expert on the law* applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.

(c) A judge may consult with court personnel* whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities or with other judges.

* * *

(e) A judge may initiate or consider any ex parte communications when expressly authorized by law* to do so.

So at the very least, the judge would have to notify the parties and an opportunity to respond if and only if the representative in question counted as "disinterested."

In that context, I think it would at least be highly dubious for someone to attempt to induce the judge to violate his/her own ethical prohibitions, if not necessary a direct violation of attorney ethics.

Posted by: Paul Gowder | Jul 12, 2005 6:03:35 PM

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